Nabil Ben Naoum speaks to Federal Court of Canada on vaccine travel mandates and citizens' rights and freedoms – October 11, 2023

Translated from the official transcript in French

File no.  A- 1-22 FEDERAL COURT OF APPEAL BETWEEN:

NABIL BEN NAOUM, THE HONORABLE MAXIME BERNIER, THE HONORABLE A. BRIAN PECKFORD, SHAUN RICKARD AND KARL HARRISSON Appellant - and –

THE ATTORNEY GENERAL OF CANADA Respondent

HEARING HELD AT Ottawa, Ontario Wednesday, October 11, 2023

CORAM: L’honorable juge George R.  Locke, L’honorable juge René LeBlanc J.A.,   L’honorable juge Nathalie Goyette J.A.  

REPRESENTATION BY MR NABIL BEN NAOUM :

Well, first of all, I have to say that since the case is consolidated, I agree with the arguments of my co-appellants on the theory of cause. 

I am here to make my own points.

I've decided to frame it in terms of Borowski's second criterion, specifically the public interest in hearing the case, but not only that.  I am going to make various points, and although I am also a lawyer, I am here... I am representing myself and I wanted to give you the layman's view. 

I have an introduction that is a reminder of some of the elements of the vaccine mandate, and you'll soon have an idea of what my point is.  

I would therefore like to begin by reminding you of an important fact, which was also mentioned by my colleague, Mrs Pejovic.  The fact that from November 1 until June 22, 2022, in other words for a period of more than eight months, a citizen who had not been vaccinated against COVID could not leave Canada.  I repeat, during this period of almost a year, the only way for a citizen who had not been vaccinated against COVID to leave Canada was to take a rowboat and paddle across the ocean.  

I must have said this a dozen times since the trial began, but I'll say it again and again because it seems to me that no vaccinated Canadian can fully integrate and understand the issues at stake.  

In 2022, this sub-class of citizens, the non-vaccinated, found themselves assimilated to Cubans under Fidel Castro's regime.  These six million citizens, of which I am one, since I was forced to publicly declare my medical record that I thought was private, found themselves prisoners of their country.   I repeat this because all too often I have encountered people who have not grasped the full implications of the debate.  

Among them, Mrs Justice Gagné, who during the trial seemed to discover facts about this issue, such as the fact that Canadians were unable to take the plane to visit their dying family members because of the vaccination mandate, and that this did not constitute an emergency according to the brilliant decision-makers at Transport Canada.  

It is these measures that the Attorney General has defended, which is why this case is a sensitive one for his members and why he wants to confirm the strike for mootness as soon as possible.  To do this, he is counting on your abdication of responsibility.  

Let me therefore briefly outline some of the elements of the travel vaccination mandate in question which the Federal Court of First Instance did not consider to be in the public interest or to contain uncertainty in the law, and then I will explain why I believe that these suspended vaccination orders are still relevant.   First of all, with the travel vaccination mandate, unvaccinated citizens could get on a plane to Canada, but they couldn't get on a plane leaving the country, supposedly for the safety of the passengers.   So we have unvaccinated passengers who are dangerous on a plane leaving Canada, but not on a plane going to Canada...   no, it's the other way around, who are dangerous on a plane leaving Canada, but not on a plane going to Canada.   This is what I call the miracle of liberal science.

The truth is, we all know what the real reason is.  It's because Canada couldn't refuse to take in its own citizens – that would make for a diplomatic mess and too much of a disgrace.  They could only prevent them from leaving afterwards.  And let me remind you that doctors and experts took their professional oaths to defend this heresy, paid for by the public purse. 

What is even more appalling is that the vaccination mandate has managed to create a situation where, for the first time – and I would ask you to find me an example if there is one – the status of Canadian citizenship itself has become a criterion of discrimination, before being unvaccinated.  By a madness that only a government decision-maker could have invented, it was decided that if you were an unvaccinated foreigner, you could fly within and leave Canada without any problem, but if you happened to be a Canadian citizen, you could not.  This demonstrates that there was nothing sanitary or scientific about these measures. 

I am amazed at the level of intellectual dishonesty required to defend this policy.   It's absolutely incredible in the sense that Canadian citizenship is supposed to confer rights and privileges, not prohibitions.  It wasn't just people who had priority over an unvaccinated citizen, but animals too.  I'd like to share a personal story that may illustrate the reality of being an unvaccinated Canadian citizen in 2022. Shortly after I filed my application for judicial review, I was talking with a colleague at the courthouse who explained that she was going to fly back to see her family in Europe and that she would be taking her Chihuahua with her.  So I had this great moment of loneliness when I got home and stared at my dog for a long time and had this realization.  I realised that a dog has more freedom of movement than an unvaccinated citizen in the Canada defended by the Attorney General.   And it’s with great seriousness that people come and defend this policy to your face.  

Another thing that is misunderstood: there was no alternative, such as a negative COVID test.  Our federal decision-makers decreed that an unvaccinated person with a negative COVID test was more dangerous than a vaccinated person who had not been tested.   This is another point I would like to emphasise, that there was no possible alternative for an unvaccinated citizen, and here I am of course referring to the Oakes test of minimal impairment, which we have never been able to debate. 

So, I repeat, we couldn't test negative, we couldn't have a family emergency, everything was set up so that the only way to leave Canada was to be raped, because that's what it's all about.  Submitting yourself to an act without consent is rape.  Well, unlike a lot of people, I refused to be raped.  I refused to be injected against my will just because I was told to.  

And I haven't invented anything.  Free and informed consent to healthcare, freedom of movement, minimal infringement of rights – it doesn't seem to me that we have discovered the moon here.  I have simply remained faithful to the principles of law that have shaped me and guided my practice and professional knowledge, while others have turned their backs on our civilizational achievements.  All the regulatory mischief that I have enumerated, and that they have defended so vigorously, is what they hope will be forgotten forever by the dismissal of the appeal. 

Now that I've set the scene, I can imagine the questions this Court of Appeal is asking itself.  Yes, it's completely stupid politics, but how is this litigation still relevant? What blatant errors were made in the judgement declaring it moot? Why should this appeal be taken up now that the health concerns seem to be behind us?  Well, it's because, contrary to what has been said, this is not a health debate, it's not a pandemic management debate, it's a rule of law debate.  It's not just a violation of the rights and freedoms of Canadian citizens, it's a violation of human rights.

Let me remind you of both the Canadian Charter of Rights and Freedoms and the Universal Declaration of Human Rights : "Everyone has the right to leave any country, including his or her own [...]".  

Well, the unique opportunity that this Court of Appeal has is to establish a principle that I believe is fundamental to our democracy, which is that the violation of a human right, even the appearance of a violation, is never "moot".   It is never outdated or theoretical.   It is permanent, it must be monitored, it is controlled by our institutions, it is debated, it is analysed.  The statement that this Court of Appeal can make is this: the violation of a Canadian citizen's right or freedom never becomes theoretical when a right that has been taken away is subsequently restored.   And that is the unwavering principle that I want to convey today, that is the message that I hope this Court of Appeal hears and receives, and it is on the basis of that principle that I submit to you that the Federal Court of First Instance has completely missed the point, and it is for that reason that I submit to you that you must intervene.  

And on this point, allow me to step back from the debate.  I must admit to a certain disinterest when I see where the debate is heading in terms of applying the criteria for mootness like a recipe: what is the standard of review, the correct, reasonable decision, an error of law, an error of fact, a mixed error, is it Borowski's first or second criterion? I submit to you that we are first and foremost at the heart of the statutory jurisdiction of the Federal Court of Appeal and its right to review first instance decisions.  

I don't practice at the Federal Court, so to make up for my shortcomings, I've had to do a lot of research on the subject, and in the course of that research I came across a talk given in 2016 by your colleague, the Honourable Justice Stratas, the presiding judge of this Federal Court of Appeal, and allow me to share with you a brief quote from him. He said in 2016:

"We like to think that our Constitution and our rights and freedoms are permanent features of the way we live.   That's because in today's world, they are obvious for most people.   But the reality is that we live in four dimensions, and the fourth dimension is time.   What we have today, we have acquired, but time passes and circumstances change.  

Who could have imagined in 1930 that within a decade millions of Jews would be exterminated simply for being Jewish? Is that too extreme an example? In that case, in 1940, who would have thought that within ten  years, thousands of North Americans of Japanese descent would have had their property confiscated and been exiled? Is that too long ago for you? Then in 1960, who would have thought that hundreds of our fellow Quebecers would be sent to prison without charge, without trial, on nothing more than suspicion? Just because you think we're living in peaceful times doesn't mean it will last.   What history teaches us is that it is bound to change."

The quote continues. 

"Now, with that in mind, imagine the most extreme example that could befall us 30 years from now.  Let's say 30 years from now there's an imminent national emergency, something very serious for our security.  The government passes laws that many will say are necessary, arbitrary arrests, confiscation of property, suspension of privacy for a certain category of people, whatever you can imagine, think extreme, think radical.   The issue of government control versus the rights and   freedoms of citizens will then come before a judge.   Do you want that judge to decide the issue on the basis of constitutional principles that have been applied for decades, if not centuries, or do you want that judge to come to a conclusion based on his or her personal view of what would be appropriate in the circumstances? Which approach do you prefer? Which approach promotes public support, order, social cohesion? Which approach promotes public obedience, especially in a context of fear and anxiety? In my view, the answer is obvious.   We need judges who take an approach that is faithful to the principles that have been rooted for decades, if not centuries.   The second approach has murky effects, where we see decisions being treated as political events, where some will see judges as servants of the politicians who put them in power."

That was the end of the quote, and it's an extract from Mr. Justice Stratas' lecture in 2016. 

 So he probably wouldn't have wanted to be such a visionary and prophet of doom, although he was very optimistic with his assumption of 30 years in the future, because here we are eight years later before you.  

Like Justice Stratas, I appreciate the dialectical approach of the doomsday scenario, so allow me to propose a completely imaginary scenario.  Imagine a health problem caused by a disease very similar to the flu; imagine that there is a vaccine against this disease, but that even if we receive it four, five, six times, we can still contract or transmit it; imagine that this vaccine carries the risk of significant side effects. Imagine now that this vaccine will create two classes of citizens in Canadian society, the vaccinated and the non-vaccinated, and that the federal government will order everyone to be vaccinated, or else the non-vaccinated will be excluded from life in society: they won't be able to go to the gym, they won't be able to go to restaurants with their spouse, they won't be able to go to shopping centres.  That is not so bad, you might say.  So let's go one step further.  

What if unvaccinated people couldn't work? They couldn't get unemployment insurance if they lost their jobs?   They couldn't get organ transplants, they'd be left to die like dogs?  Let's imagine, still in this hypothetical scenario, that they decide to protest peacefully against these measures and demonstrate in the capital.  Imagine that the government declares martial law to put an end to the demonstrations, which would be described as an occupation.  That they would be told that they are uneducated, that they don't know how to handle things, that they are disruptive.  That we do not listen to them because they are not going through the proper legal channels.  The Prime Minister would ask how such a fringe group can be tolerated.  Imagine that the citizens who took part in the demonstrations will have their bank accounts frozen, and finally, that these sub-citizens are beginning to get fed up with the situation of being locked inside with no prospects for the future, and that for the first time in their lives they have the idea of leaving Canada, well, imagine that they won't be able to do that, not even with a negative test for the disease.  They will remain in Canada against their will.  

What if these citizens were naively trying a court challenge to these measures? What if, a few months after filing their appeal, the government decided to restore their rights without any explanation, just before the hearing? It would be said that it was a suspension and that the situation could return at any time, and it would then be decreed that all their appeals should be struck out as moot, because 'suspension' now means 'repealed' in our Newspeak.  

With this scenario in mind, let me ask you a question: would we then be fully democratic in Canada? Would we still have a system of checks and balances, or would we have descended into health fascism? Would we still be in a jurisdiction where the rule of law prevails, or would we have become the laughingstock of the world?   

I'm responding to Justice Stratas' question.  For my part, I would like the judges who decide this issue, rather than simply going along with the so-called "mootness" principle, to apply the inviolable principles of rights and freedoms that have underpinned our society for decades if not centuries.  The violation of rights and freedoms must be analysed in the full context of its historical, philosophical and jurisprudential roots.  The fundamental right to leave any country, including one's own, is what distinguishes a democratic civilisation from totalitarianism. It is disgraceful to violate this right for a year and then claim that the case is now moot.

If that is the case, the fundamental question I would ask is: how low are we going to go?  How far can a government violate fundamental rights and then give them back at one minute to midnight and get away with it? If Canadian citizens were deprived of the right to vote and then given it back, would their lawsuit be moot? If they were deprived of their nationality, making them stateless, and then given it back, would they still have a claim? If they were deprived of their freedom of movement and then had it restored, would it suddenly be "moot"? Where do we draw the line?

The principle of mootness is an ad hoc, limited principle which is useful in basic situations and which has been totally abused in this case for purposes which are totally contrary to the most basic principles of legal philosophy.  Mootness is very convenient.  I'd like to be able to use this ruse as the government does.

You know, I have a sentencing hearing tomorrow in Montréal.  One of my clients has pleaded guilty to armed robbery.  The stolen property was returned to the victim.  Why are we trying to determine the appropriate sentence for my client? The victim has recovered his stolen property.  The case has become moot.  More generally, why did we bother with a Nuremberg trial?  The war was over.  There was no longer a dispute between the parties, it was "moot".  I'd like to remind you that this trial led to the Universal Declaration of Human Rights, which proves that sometimes it's worth having a hearing.

JUDGE LEBLANC: We did not try war crimes at Nuremberg…

Mr NABIL BEN NAOUM: Yes, absolutely.  

JUDGE LEBLANC: You're going a bit fast there.  

Mr NABIL BEN NAOUM: If you like, Your Honour, I'm not waiting for war crimes to happen.  

So why are we making such a big deal out of the current Indigenous residential school debate? It's all over.  Let all their claims be declared moot.  Of course, the federal government will never dare use the mootness argument on this issue.  And do you know why? It's because the decision-makers of yesterday are not the decision-makers of today, so it's all very well for the government players to flagellate themselves on this issue because they don't have the blood on their hands that they do in this case.

You understand that justice cannot work that way.  From a philosophical point of view, it is the behaviour at the time of the crime that is analysed and controlled, not today's situation.  What kind of society do we have where the government can defend itself and the citizens cannot? Shall I tell you where this legal drift is leading? This situation, where the government can pass laws, repeal them right before the hearing and get away with it without any judicial review, is taking Canada into the realm of banana republics – and believe me, I know a lot about that – a society where citizens never dare to assert their rights because there's this collective gravity where everyone knows that it's pointless, that against the government you're going to lose in advance, and this climate breeds cynicism, and it breeds crime.   

I'll give you a very specific example.  In 2022, some people approached me and offered to make me a false vaccination passport.  I have relatives and clients who have done this and left Canada that way.   Personally, I strictly refused.   Firstly, because I never wanted to have to wave a vaccination card in my life, but above all because I wanted to have my rights recognised by the legal system, by the rule of law, in accordance with my professional oath and my values. 

Well, I can tell you that if this lawsuit were to end without a judicial remedy, if a similar situation were to arise again, do you think I would  continue to spend tens of thousands of dollars on my legal defence, that I would devote months of my life to it, putting my personal and professional life on hold? I can tell you that in that situation, at the first chance, I would order a false document, not because I'm a criminal, not because I'm an outlaw, but because my democratic institutions have given up, because I know that this is now the only way to assert my rights in my banana republic, because I've become jaded and have been dragged by force into cynicism and cunning.  

That's what I want the Court to consider today, the consequences of inaction, because to intervene is as much a sacrifice as to do nothing.  The message that this sends to the reasonably informed public and to people who are trying to assert their rights in the right way is that there is a public interest in hearing the case which the judgment declares to be non-existent.  In fact, the public interest in hearing the case is so non-existent that the court was overwhelmed and had to broadcast the hearing online.

Now, Your Honour asked my colleague, Mr Presvelos, a question earlier, which I found very interesting, he asked him: "There is a...", I don't want to paraphrase you incorrectly, but as I understood the question, it was: "There is a public interest, but which public?"  And your question made me think of a quote by the German pastor Niemöller, a survivor of the Nazi regime, who said:

"When they came for the communists, I said nothing.  When they came for the socialists, I said nothing.  When they came for the trade unionists, I said nothing.  When they came for me, there was no one left to defend me."

So, yes, perhaps the public interest affects only one category of citizen, but I submit to you that those who are not interested in this issue are equally mistaken, because their interest should be based on the question of what measure has been taken and not on whom it has affected. 

The question that arises from your question is: who will be the unvaccinated people of tomorrow? Have they paid any attention to what has happened today? Please understand that I have no reason to be here today, no reason to have closed my office for a month of hearings during the full-time questioning of this appeal.  I did it out of necessity, because I was tired of living in total cognitive dissonance, defending the principles of the rule of law in court every day, while not being able to exercise my own freedom.  Normally there would be no reason for me to travel to Ottawa today.  The last time I was here, in January 2022, there was a wonderful party in the city, and if you think that disturbed the peace of the capital and was unwelcome, then when revolt takes the democratic route, the legal route, it is essential that the courts do not turn a deaf ear to it. 

I would like to remind you of the words of Justice Stratas: What approach promotes social cohesion and public confidence in the administration of justice? On the contrary, it is the passive approach and the abandonment of the courts that is making Canada the laughing stock of democratic societies.  It's one thing to have our most basic rights suspended at the snap of a finger, but it's far worse not to have them at least analysed by a court of law.  

We've seen that Canada has a weak constitution.  You know, the worst regimes in the world all have constitutions.  North Korea has a constitution and it's very liberal.  I invite you to read it.  The constitution itself is a worthless piece of paper unless it is constantly defended, used and reaffirmed. 

Finally, I wanted to address the role of the respondent in the proceedings.  In my appeal brief, I entitled it: "The Attorney General of Canada: from defender of the rule of law to segregationist official".   I don't want to go on too long given the limited time I have; I would ask you to read my memorandum, but I do believe that this dispute is in the public interest, which is all the more important given that the respondent represents the federal Crown.  

The case law reminds us of the high standards to which public officials are held.  In Elizabeth Sanderson's excellent book, Duties and Ethical Challenges of Government Lawyers, we are told that the Attorney General is a central player in our democratic society whose role is to uphold the rule of law.  He provides citizens with a bulwark against the arbitrary power of the state.   Since the advent of the Canadian Charter, it has been his duty to analyse each provision in terms of rights and freedoms.   I'm not going to teach you that, Mr. and Mrs. Justices, who are representatives of the Crown.  To be Attorney General is not to be buddy-buddy with the government, it is not to be its servant, ready to defend its every whim, even to the point of accepting the application of quasi-political apartheid in our country.  It's about being an independent advisor to the Crown and intervening when things go too far.  

I submit to you that what we have here is the most discriminatory, the most segregationist mandate of the century, which has been defended without interruption in a legal-industrial complex.  To ban millions of citizens from leaving the country is, in my view, not only not moot, it is a policy rooted in such malice… the rule of law has been soiled to such an extent that it would be criminal to sweep it under the carpet.  You have a responsibility to take up this appeal, at least as regards whether the Court needs to hear it.  

The members of the Attorney General of Canada’s office argued that I should not be allowed to enter an airport.  Under their oath of office, they claimed that I could be a danger to the quality of the air in the cabin of an aeroplane.  You have to realise the violence and vulgarity of such a statement.   That's the kind of nonsense that I had to put up with.  It was so dangerous for them to be in the same airport as me that they had no problem sharing the same courtroom.  It was so dangerous for me to be near them on a plane that they had no problem running up to me and shaking my hand when we met in the middle of a pandemic, demonstrating the dishonesty of their position, which was really just a fake stance.  This matter has gone very far.

It is through the decisions of the Federal Court that the members of the Attorney General's Office can be educated in the law and freedom and, if necessary, make adjustments.   It is also your responsibility to provide them with substantive decisions that confirm or overturn their position.  In this way, they may understand that the values that guide them and the virtues they promote should not be limited to putting pronouns in their signatures.  Because pronouns are quite an inexpensive way to do so. 

I've dealt with cases of violence, procuring, attempted murder, sexual assault, theft, fraud, drug dealing, everything you can imagine.   I have never been so disgusted – and I weigh my words carefully – as I am with this one.   To unilaterally decide that millions of citizens no longer belong to the corpus of society is what Hannah Arendt called 'the banality of evil'.  

And don't get me wrong, I've disagreed with provincial and federal prosecutors on thousands of occasions.  That's not the point.  I'm someone who thrives on   debate.  But within the framework of the rule of law.  At no time in my career has a prosecutor said to me, "Colleague, exceptionally, your client should not have the benefit of the presumption of innocence", "exceptionally, your client should not have the right to counsel", "by way of exception, your client must remain in custody without a bail hearing".  This was the first time I heard the government's henchmen say: "Exceptionally, you should not be allowed freedom of movement".   By their behaviour they have bastardised the rule of law.  They have promoted hatred of others.  They had a chance to be great, to make a difference, a once-in-a-career chance.  They chose to submit instead.  

I'd like to take this opportunity to conclude by saying that I will stand in their way every time they decide to defend the undefendable.   That the blackmail and violence of a state will never work on me.  That I will always remain faithful to the values of non-discrimination and consent.   Sadly, there is no vaccine against totalitarianism. 

So there you have it, given the limited time I have, that's the picture I wanted to paint for you and my analysis of several issues as to why I think you have a responsibility as judges of the Federal Court of Appeal to take up this appeal.  

This is respectfully submitted to you, and I'm really looking forward to seeing what happens next. 

Thank you for listening.